Chief Justice Bobde will not be missed

When Ranjan Gogoi demitted office as Chief Justice of India (CJI), many heaved a sigh of relief. Now the term of his successor Sharad Arvind Bobde has also ended. He too will not be missed.

CJI Bobde carried on the unsavoury trend set by his predecessor of avoiding situations calling for a check on the Executive. One might well ask: What good is a judge who will not judge the powerful? And equally, what use is justice without compassion? CJI Bobde and the Supreme Court under his leadership fell short on both counts.

CJI Bobde shied away from hearing important constitutional questions before the Supreme Court. Under his tenure the dilution of the provisions of Article 370 and bifurcation of the erstwhile state of Jammu and Kashmir into two Union Territories, remained in cold storage. This undermined the faith of millions of Indians, especially Kashmiris, in the Supreme Court as protector and arbiter of the Constitution. The jamming of the judicial process further put democratic political processes in J&K on hold.

He also chose to ignore the challenge to the Constitutional validity of the 103rd Constitutional Amendment Act which introduces reservations for economically weaker sections (EWS). There are more than 20 petitions pending before the Supreme Court arguing that this amendment violates the basic features of the Constitution and the fundamental right to equality. They point out that the court has itself ruled in Indra Sawhney vs. Union of India that reservations cannot be based solely on economic criteria; that exclusion of SC/STs and OBCs from economic reservations would violate their fundamental right to equality; that the amendment would take reservations beyond the 50% limit set by the court and that imposing reservations on educational institutions that do not receive state funding violates the fundamental right to equality. By simply not holding hearings on the case, the court has allowed EWS reservations to continue.

Similarly, he put in cold storage legal challenges to the Aadhar Amendment Act and to a judicial review of Money Bills (controversial after the Lok Sabha Speaker classified a number of Bills as Money Bills--such as the Aadhar Bill, now Act – to prevent their rejection by the Rajya Sabha). Even more egregious was the interim order on electoral bonds by a bench headed by CJI Bobde. It allowed the continued sale of electoral bonds since this had continued “without impediment” in 2018, 2019 and 2020. In the interim order, the court put the onus of finding out who had made the donation to a political party on ordinary citizens who were enjoined to make “a little more effort to cull out such information from both sides (purchaser of the bond and political party) and do some ‘match the following’.” In sum, the court would not direct the parties to make the information public, a far easier solution by any reckoning than private citizens tallying the annual financial returns of a political party with the annual reports of thousands of companies who purchased the bonds.

CJI Bobde will be long remembered for his judicial insensitivity on the plight of migrant workers as the pandemic broke. On five occasions beginning March 31, the Supreme Court dismissed petitions to help migrant workers. The Supreme Court under CJI Bobde believed statements by the government that everything was under control and “fake news” was to be blamed for triggering the migration. “We will not supplant the wisdom of the government with our wisdom” he said. Shrugging off its responsibility the Supreme Court said “How can we stop people from walking?” On ensuring payment of wages to migrant workers in shelters, he insensitively observed “If they are being provided food, why do they need money?”

Only the progressive orders of various High Courts spurred the Supreme Court into action and finally declare, “This section of society needs succour and help of the concerned governments.” Despite this the court refused to enforce payment of lockdown wages that were mandatorily guaranteed by the government under the Disaster Management Act. Rather, it supported the government’s request compelling weak, jobless migrant workers to negotiate with their employers.

Despite brutal police action against students in Jamia and Aligarh Muslim Universities, CJI Bobde refused to hear petitions challenging the Citizenship Amendment Act till “the violence stops” refusing however to name the state as the perpetrator of violence in this case. Even on his last day in the court, he claimed that freedom of speech was the most abused right in India. This is in keeping with his earlier comments on the “misuse” of RTI Act creating a sense of “paralysis and fear”.

The Covid-19 pandemic cannot be cited as an excuse by the apex court to ignore crucial issues it was called upon to adjudicate. Eminent lawyer Dushyant Dave has pointed out however that in contrast corporate cases like Tata vs. Cyrus Mistry dispute received a quick hearing. CJI Bobde’s final gaffe was in appointing Vedanta’s lawyer Harish Salve as amicus curiae in a case of Covid management on his last day on the Bench. Just a day earlier Salve had appeared before him seeking permission to reopen Vedanta’s Sterlite Copper plant at Thoothukudi in Tamil Nadu, ostensibly to produce Oxygen for Covid patients. The plant was shut for violating environmental norms after 13 protestors were shot dead. Salve finally recused himself as amicus curiae citing his friendship with CJI Bobde since their school days and a possible conflict of interest.

On his departure, CJI Bobde regretted that no woman had yet held this position. But it is difficult to see how this “enlightened” observation squares with his questioning the presence of women in the farmers’ agitation, “Why are women and children being kept in the protest?” The comment betrays disbelief in women’s political agency.

CJI Bobde was thin-skinned about criticism and summoned a senior counsel for contempt for commenting on a photo of his on a Harley Davidson motorcycle during the pandemic without a mask. For someone who could not protect the reputation of the Constitutional Court, it seems incongruous that he went to such absurd lengths to protect his personal image. However, as Indians see the back of this departing bus, no one knows what the next one will bring.